Opinion
No. E11-118
02-08-2012
GEORGE A. OCCHUZZO APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES and J.B. HUNT TRANSPORT APPELLEES
APPEAL FROM THE ARKANSAS BOARD OF REVIEW
[NO. 2010-BR-206]
AFFIRMED
JOSEPHINE LINKER HART , Judge
George A. Occhuzzo, who was employed as a truck driver by appellee J.B. Hunt Transport until his termination from that position, appeals from the Arkansas Board of Review's denial of unemployment benefits. The Board denied benefits under Ark. Code Ann. § 11-10-514(a)(1) (Supp. 2011), which provides in part that "an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work." On appeal, Occhuzzo contends that he did not engage in misconduct and thus was entitled to unemployment benefits. We affirm the Board of Review's decision.
At the hearing, Occhuzzo's former supervisor, Steven Leibrock, testified that he discharged Occhuzzo from work for a violation of the employer's policy. Leibrock testified that Occhuzzo's truck was equipped with a computer that monitored "hard-braking events." Leibrock described these events as braking that caused a decrease of twenty miles per hour within one second. When an event was registered, the computer would send a notification to Leibrock. According to Leibrock, the company's policy was that any time a driver had three events in one month, the driver must undergo additional training to ensure that the driver is not following other drivers too closely. Leibrock testified that Occhuzzo had one hard-braking event that was then followed by two more in a twenty-four-hour period. Leibrock told Occhuzzo that they needed to conduct a "check ride" and that he was required to undergo additional training. Leibrock testified that Occhuzzo refused to do so, which was in violation of the company policy that was described in the employer's driver manual.
Occhuzzo testified that when he went into Leibrock's office, he and Leibrock had a heated argument. When Leibrock told him that he had to go for a ride in the truck with Leibrock and take refresher courses, he refused. He excused his refusal by explaining that he did not feel it was safe to drive in his condition because he was too upset and he wanted to "cool off." He admitted that he did not tell Leibrock that he did not feel like he could drive and complete the training. He believed, however, that Leibrock "ought to have been able to see it."
On rebuttal, Leibrock testified that he and Occhuzzo did have a disagreement regarding him requiring Occhuzzo to do the training and Occhuzzo not wanting to do so. He further testified that Occhuzzo never told him that he needed to leave and intended to undergo the training later, but rather he "basically told me he didn't need me telling him how to drive." In questioning Leibrock, Occhuzzo stated that "I did agree to go on that check ride with you, but I needed a couple of hours to cool off. I did say that." Leibrock testified that Occhuzzo never made those statements in his office. He further testified that Occhuzzo never told him that he would complete the training at a later date.
The Appeal Tribunal found that Occhuzzo was discharged after refusing to complete the required training from his employer, that the employer's request was not unreasonable, and that Occhuzzo's failure to comply was insubordinate. The Tribunal found that Occhuzzo was discharged for misconduct in connection with his work. On appeal to the Board, the Board adopted the Tribunal's opinion and noted that Occhuzzo testified that he was willing to do the required training at a later time so that he could "cool off" after the disagreement with his supervisor about his driving, but he did not tell his supervisor that he needed to cool off and instead argued with his supervisor and refused to participate in the required training. The Board found that this conduct amounted to misconduct in connection with the work. Occhuzzo appealed from the Board's decision.
"Misconduct" includes disregard of the employer's interests, violation of the employer's rules, disregard of the standards of behavior that the employer has the right to expect of his employees, and disregard of the employee's duties and obligations to his employer. West v. Director, 94 Ark. App. 381, 231 S.W.3d 96 (2006). It requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith error in judgment or discretion. Id. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. This court reviews the findings of fact of the Board in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. McKissick v. Rolle, 61 Ark. App. 266, 966 S.W.2d 921 (1998). The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Id.
Occhuzzo argues that he did not engage in misconduct because his conduct did not manifest a wrongful intent. He asserts that "it would have been unreasonable for [Occhuzzo] to embark on a drive and then training exercise with his immediate supervisor immediately after a heated dispute with the same supervisor" and that he was "merely attempting to ensure that he could complete the training when in the proper frame of mind in order to secure the best results possible and the safety of those with whom he would share the road." He further contends that this should have been obvious to Leibrock despite Occhuzzo's failure to tell Leibrock of his intentions. The Board, however, was not obligated to credit the explanation Occhuzzo gave during his testimony regarding his intent to take part in the training. Rather, the Board had before it Leibrock's testimony that Occhuzzo, without offering any explanation, flatly refused to comply with Leibrock's request to adhere to company policy and take the required safety training, thus manifesting wrongful intent.
Occhuzzo further asserts that his failure to engage in training when requested should not constitute misconduct. He relies on the decision of Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996), where this court held that substantial evidence did not support the Board's decision that an unemployment compensation claimant was discharged for misconduct for failing to take a drug test within a specified time frame. There, however, the claimant advised his employer that he was not refusing the drug test but instead he wanted to obtain the advice of a union official before taking the drug test. This contrasts with the present case in that Leibrock testified that Occhuzzo did not advise him that he intended to drive and complete the training at a later time.
We cannot say that substantial evidence does not support the Board's decision. Accordingly, we affirm.
Affirmed.
GLADWIN and WYNNE, JJ., agree.